Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/12

Rh that any one of various possible groups of specific operative facts would suffice, so far as the defendant's obligation ex delicto is concerned. It therefore could not be said that any one of such groups had been put in issue by the pleadings. A common fallacy in this connection is to regard the specific operative facts established in a given case as being but "evidence" of the generic (or "ultimate") operative facts alleged in the pleadings.

An evidential fact is one which, on being ascertained, affords some logical basis—not conclusive—for inferring some other fact. The latter may be either a constitutive fact or an intermediate evidential fact. Of all the facts to be ascertained by the tribunal, the operative are, of course, of primary importance; the evidential are subsidiary in their functions. As a rule there is little danger of confusing evidential facts with operative facts. But there is one type of case that not infrequently gives rise to this sort of error. Suppose that in January last a contractual obligation was created by written agreement passing between A and B. In an action now pending between these parties, the physical instrument is offered for inspection by the tribunal. If one were thoughtless, he would be apt to say that this is a case where part of the operative facts creating the original obligation are directly presented to the senses of the tribunal. Yet a moment's reflection will show that such is not the case. The document, in its